1. When reviewing challenges to jury instructions, an appellate court is required to consider
all the instructions together, read as a whole, and not to isolate any one instruction. If the
instructions properly and fairly state the law as applied to the facts of the case, and a jury
could not reasonably have been misled by them, the instructions do not constitute
reversible error even if they are in some way erroneous.

2. In this case, an instruction informing the jury to presume the defendant is not guilty until
the jury is convinced the defendant is guilty was not reversible error.

3. When a defendant challenges the sufficiency of evidence, an appellate court's standard of
review is whether, after review of all of the evidence, viewed in the light most favorable to
the State, the appellate court is convinced that a rational jury could have found the
defendant guilty beyond a reasonable doubt. An appellate court does not reweigh a jury's
determination of the credibility of a witness.

William R. Mott, county attorney, and Phill Kline, attorney
general, for appellee.

Before HILL, P.J., MALONE and GREENE, JJ.

MALONE, J.: John David McConnell appeals his convictions of possession of
methamphetamine and illegal vehicle registration. McConnell claims the trial court failed to
properly instruct the jury on presumption of innocence. He further claims there was insufficient
evidence to support his conviction of possession of methamphetamine. We affirm.

On April 10, 2003, at approximately 1:50 a.m., Sumner County Sheriff's Deputy Brien
Swingle stopped a car traveling on a dirt road without a tag light or license plate. Deputy Risa
Hofmeier joined Swingle at the scene to assist. Swingle identified the driver as McConnell from
his Kansas driver's license and arrested McConnell when he could not produce a title, tag, or
registration for the vehicle.

Swingle searched McConnell and found pocket knives, a cigarette tin, and a blue glass
bottle with a tin lid in the lower left pocket of McConnell's military fatigue-styled pants.
According to Swingle, when he asked McConnell about the bottle, McConnell responded, "I don't
know. These aren't my britches."

Swingle opened the bottle and noticed it contained a yellowish substance and small
rock-sized objects. Relying on his training, Swingle was suspicious of the bottle's contents. He
performed a field test and identified the contents as methamphetamine. Based on the field test,
Swingle arrested McConnell for possession of methamphetamine.

McConnell was charged in district court with possession of methamphetamine and illegal
vehicle registration. At the start of his trial, McConnell stipulated to the bottle's contents being
methamphetamine. On direct examination, Swingle described the stop, the search and arrest of
McConnell, and also noted how the waist and length of McConnell's pants appeared to fit him. On
cross-examination, Swingle testified he never asked McConnell what the bottle contained, how
long he had it, or where he got the bottle. Swingle said he never asked McConnell these questions
because McConnell had told him the pants were not his own. Hofmeier's testimony corroborated
Swingle's version of McConnell's stop, search, and arrest.

The defense presented testimony from two of McConnell's friends. Susan Hauser testified
she had known McConnell for 25 years, that he collected old glass bottles for a number of years,
and identified a collection of old blue glass as McConnell's. Lisa Taylor testified she had known
McConnell for 11 years and her testimony mirrored Hauser's. Neither Hauser nor Taylor testified
as to the events of April 10, 2003.

On direct examination, McConnell testified he was at an abandoned farmhouse looking for
perennial asparagus prior to his arrest. He stated he was too early to find asparagus, but found the
blue glass bottle during his search at the abandoned farmhouse. McConnell testified that he
collected old glass bottles, so he placed the bottle in his pants' pocket to be examined later. He
categorically denied having any intent to possess methamphetamine the day of his arrest.
McConnell testified Swingle never asked if the bottle was his or what it contained.

On cross-examination, McConnell presented a slightly different version of the events of his
arrest. McConnell described how Swingle searched him, felt the bottle in his pocket, asked what it
was, and that he responded he did not know because they were not his pants. McConnell told the
jury his own pants had been switched with his brother-in-law's who had recently done laundry at
McConnell's house. McConnell testified that once Swingle showed him the bottle, he told Swingle
it appeared to be an antique. He admitted he did not tell Swingle he had found the bottle that day
or that he collected blue glass.

The jury convicted McConnell of one count of possession of methamphetamine and one
count of illegal vehicle registration. The trial court sentenced McConnell to 11 months'
incarceration with the Kansas Department of Corrections on the possession of methamphetamine
count and 30 days in jail on the illegal vehicle registration count, with the sentences to run
consecutively, and placed him on 12 months' probation. McConnell timely appeals.

Jury instruction on presumption of innocence

McConnell first claims the trial court failed to properly instruct the jury on the
presumption of innocence. When reviewing challenges to jury instructions, an appellate court is
required to consider all the instructions together, read as a whole, and not to isolate any one
instruction. If the instructions properly and fairly state the law as applied to the facts of the case,
and a jury could not reasonably have been misled by them, the instructions do not constitute
reversible error even if they are in some way erroneous. State v. Peterson, 273 Kan.
217, 221, 42
P.3d 137 (2002).

At the close of evidence, the trial court instructed the jury on burden of proof,
presumption of innocence, and reasonable doubt as follows:

"The State has the burden to prove the defendant is guilty. The defendant is not
required
to prove he is not guilty. You must presume that he is not guilty until you are
convinced from the
evidence that he is guilty.

"The test you must use in determining whether the defendant is guilty or not guilty
is
this: If you have a reasonable doubt as to the truth of any claims required to be proved by the
State, you must find the defendant not guilty. If you have no reasonable doubt as to the truth of
any of the claims required to be proved by the State, you should find the defendant guilty."
(Emphasis added.)

McConnell argues the phrase "until you are convinced" misleads a jury into believing that
it should expect to be convinced of the defendant's guilt and therefore should convict. McConnell
asserts that the phrase "unless you are convinced" would be a better instruction on presumption of
innocence.

Because McConnell did not object to the instruction as given, review is under a clearly
erroneous standard. See State v. Daniels, 278 Kan. 53, 57, 91 P.3d 1147 (2004).
"Instructions are
clearly erroneous only if the reviewing court is firmly convinced there is a real possibility that the
jury would have rendered a different verdict if the error had not occurred." State v.
Davis, 275
Kan. 107, 115, 61 P.3d 701 (2003).

The jury instruction given in this case was drawn directly from PIK Crim. 3d 52.02. The
Pattern Instructions for Kansas were developed by a knowledgeable committee to bring accuracy,
clarity, and uniformity to jury instructions, and while they are not required, they are strongly
recommended for use by Kansas trial courts. State v. Dias, 263 Kan. 331, 335, 949
P.2d 1093
(1997) (quoting State v. Moncla, 262 Kan. 58, Syl. ¶ 5, 936 P.2d 727 [1997]).

The statutory source of the PIK instruction on presumption of innocence is K.S.A.
21-3109, which provides: "A defendant is presumed to be innocent until the contrary
is proved."
(Emphasis added.) Thus, the instruction given to the jury in McConnell's case was drawn directly
from the recommended PIK instruction which also mirrored the statutory language on
presumption of innocence.

Moreover, the Kansas Supreme Court has previously held that "the provisions of PIK
Crim. 3d 52.02 accurately reflect the law of this State and properly advise the jury in a criminal
case of the burden of proof, the presumption of innocence, and reasonable doubt." State v.
Clark,
261 Kan. 460, 475, 931 P.2d 664 (1997); State v. Pierce, 260 Kan. 859, 870, 927
P.2d 929
(1996).

McConnell cites State v. Wilkerson, 278 Kan. 147, 158, 91 P.3d 1181 (2004),
to support
his argument about the jury instruction on presumption of innocence. In Wilkerson,
although the
trial court's instruction on presumption of innocence reflected the statutory language, a unanimous
Kansas Supreme Court decreed that the instruction "would have been improved by the
substitution of the word 'unless' for the word 'until.'" 278 Kan. at 158. However, the court found
this did not require reversal of the defendant's conviction because the instructions, when read
together, accurately stated the law. "The jury could not reasonably have been misled by them, and
thus the instructions did not constitute reversible error even if they were in some way erroneous."
278 Kan. at 158.

McConnell asserts the instruction on presumption of innocence could have misled the jury
into convicting him even though he had no intent to possess the methamphetamine. Thus, he
claims the instruction in his case was clearly erroneous. By focusing on one word, McConnell
ignores the remaining text of the instruction. The same instruction provided to the jury in
McConnell's case on presumption of innocence also clearly stated: "If you have a reasonable
doubt
as to the truth of any of the claims required to be proved by the State you must find the defendant
not guilty." This language rebuts McConnell's argument that the jury could have been misled into
expecting to be convinced of McConnell's guilt. Furthermore, instruction Nos. 2 and 3 in
McConnell's case emphasized the necessity of intent and the exercise of control over the
substance
in order to convict McConnell of possession of methamphetamine.

The distinction between the words "until" and "unless" is subtle, given the natural usage of
the words in common language. State v. Beck, 32 Kan. App. 2d 784, 787, 88 P.3d
1233 (2004).
As used in this context and reading the instructions as a whole, a jury could not reasonably have
been misled about the presumption of McConnell's innocence. Moreover, there is nothing in the
record to suggest a real possibility that the jury would have rendered a different verdict if the
word
"unless" had been substituted for "until." Accordingly, applying Wilkerson, we
conclude the trial
court's instruction on presumption of innocence was not reversible error.

Sufficiency of evidence

McConnell also claims there was insufficient evidence to support his conviction of
possession of methamphetamine. He asserts that he provided a reasonable explanation of how he
came into possession of the bottle containing methamphetamine which was not disputed by the
State.

When a defendant challenges the sufficiency of evidence, an appellate court's standard of
review is whether, after review of all of the evidence, viewed in the light most favorable to the
State, the appellate court is convinced that a rational jury could have found the defendant guilty
beyond a reasonable doubt. State v. Mays, 277 Kan. 359, 377, 85 P.3d 1208 (2004).
An appellate
court does not reweigh a jury's determination of the credibility of a witness. State v.
Moore, 269
Kan. 27, 30, 4 P.3d 1141 (2000).

The evidence viewed in a light most favorable to the State revealed: (1) Swingle removed
the bottle from McConnell's left front pants' pocket; (2) McConnell admitted he put the bottle in
his pocket; (3) the bottle contained methamphetamine; and (4) the only explanation McConnell
provided at the scene of the arrest was that the pants were not his own. McConnell provided an
explanation of the events at trial which, if believed by the jury, could have resulted in his acquittal.
Apparently, the jury was not persuaded by McConnell's testimony. We conclude a rational jury
could have found McConnell guilty beyond a reasonable doubt of possession of methamphetamine
based upon the evidence presented.